Buyer Unable To Get Down Payment Returned

Q: Our son and daughter-in-law put a $21,000 down payment on an eight unit building. Their loan was denied because of the low value of the units and because the rental income was insufficient to carry the loan.

The seller sent them to his lender to apply for a new loan and they were denied there as well. The seller is trying to keep the down payment by saying he never extended escrow.

My husband and I were co-signing on the loan and all four of us signed an extension letter we received from the escrow company. Both real estate agents are in the same office and are listed as dual agents.

Do the broker and escrow officer have any liability to us since we were never told the seller had not signed the extension of escrow form? If so, where would we find the information showing their liability? This happened three years ago and we are still trying to get our money back.

A: In order to get your money back you need to understand the contract you signed for the purchase of the building.

In some parts of the country the purchase agreement is called a contract for purchase or a purchase and sale agreement. If the contract gave you the right to terminate the purchase as a result of your failure to obtain financing, you needed to abide strictly by the terms of the agreement. If an agreement has this right it may be called a financing or mortgage contingency.

The financing or mortgage contingency of a contract generally states that the buyer has a certain amount of time to obtain a commitment for financing to buy a property. If the buyer fails to get financing within the time provided, the buyer has the right to notify the seller of his or her inability to get financing and terminate the contract.

If you fail to give the seller notice by the date required, you lose your ability to cancel the agreement and if you fail to close your down payment may be at risk.

You need to determine whether you gave any notice to the seller and whether notice to the escrow agent was sufficient notice required under the contract. As you live in an “escrow” state where attorneys are probably not utilized in real estate closing, you did not benefit from having an advocate on your side of the transaction, helping you from the start to the finish.

Your real estate broker did not replace the services of an attorney that would have sent the notice to the seller informing him that you had not obtained financing. So, it was up to you to perform that important step in the transaction.

If the brokers tried to facilitate the execution of the extension of the escrow, it seems that they never tried to get an extension of the financing contingency.

It’s likely that even if the seller had extended the closing date, if you did not have financing you would still have been in default. The key to your situation was to make sure you had the right to cancel the deal when you failed to get financing and to give the proper notice to cancel it when you found out you did not get financing.

It’s unlikely that you can sue the escrow company or the brokers in your situation. Neither the escrow company nor the brokers owed you a duty to make sure the contract terms were adhered to.

As in other situations where an attorney is not used to close a deal, you were left on your own, unaware of something you could have done to protect yourself and your cash. While the brokers tried to help you, their help did not rise to the level of giving you legal advice.

I doubt there is a law in your state that requires your brokers to notifying you of your duties and rights under the contract. The escrow company has no duty of loyalty to you or the seller. Because your agent and the seller’s agent were dual agents, they also have no duty of loyalty to either party.

After three years of fighting with the seller, it’s time to talk to an attorney, preferably one who specializes in real estate litigation.

The attorney may find that the circumstances were such that the seller did get the required notice that you did not get financing and that he is required to release the money. Furthermore, the contract may provide that the seller can only receive his actual damages due to your failure to close. It may be that the seller sold the building and had no losses and you would be entitled to the full return of your money anyway.

The next time you enter into a real estate contract, be sure you understand all of the terms and conditions before you sign on the dotted line — or hire an attorney to guide you through the process.

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Definitioner

Real Estate Broker

A Real Estate Broker is an individual who is licensed by the state to act as an agent on behalf of the seller or buyer. For his or her services, the broker receives a commission, which is usually expressed as a percentage of the sales price of a home.

Real Estate

Real Estate is land and anything permanently attached to it, such as buildings and improvements.

Purchase Agreement

A Purchase Agreement is an agreement between the buyer and seller for the purchase of property.

Mortgage

A Mortgage is a document granting a lien on a home in exchange for financing granted by a lender. The mortgage is the means by which the lender secures the loan and has the ability to foreclose on the home.

Loan

A Loan is an amount of money that is lent to a borrower, who agrees to repay it plus interest.

Lender

A Lender is a person, company, corporation, or entity that lends money for the purchase of real estate.

Agent

An Agent is an individual who acts on behalf of a consumer. A real estate agent represents a buyer or a seller in the purchase or sale of a home. Licensed by the state, a real estate agent must work for a broker or a brokerage firm. An insurance agent helps a consumer purchase an insurance policy. Insurance agents are also licensed by the state.